Remanded

New Ashoka Lodge v. D. Chandra Mohan

Telangana HC1 Apr 2011CRP/2352/2010

Case brief

AI extract

What is this about?

This revision petition challenged the lower court’s order allowing delivery of possession in an execution petition filed 22 years after the appeal dismissal. The High Court found the lower court erred in limitation calculations and remanded the matter to consider if the petition revives an earlier one and to verify an alleged partial delivery agreement.

What did the court decide?

The order of the lower court is set aside; the matter is remanded to the lower court to consider revival of the earlier execution petition and verify the agreement on partial delivery; disposal within

New Ashoka Lodge Vs D. Chandra Mohan — Execution and Attachment | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

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CIVIL REVISION PETITION NO.2352 of 2010

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Date: 01-04-2011

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Between: New Ashoka Lodge and others D.Chandra Mohan and others

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.. Petitioners
And
.. Respondents

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THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

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CIVIL REVISION PETITION NO.2352 of 2010

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ORDER:

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The revision petition is filed against the order in E.P.No.18 of 2009 dated 26.03.2010 passed by the II Additional Chief Judge, City Civil Court, Hyderabad in O.S.No.114 of 1984, which was filed for recovery of possession of the property and the suit was decreed on 30.12.1985 and as against that, appeal was preferred in C.C.C.A.No.6 of 1986, which was also dismissed by this Court on 29.01.1987. Thereafter certain Execution Petitions were filed by the decree holder and in E.P.No.3 of 1999 delivery was ordered on 23.02.2001. But the judgment-debtor filed O.S.No.652 of 2001 and obtained an order of injunction and the warrant could not be executed and no steps were taken in the E.P.No.3 of 1999. The said suit O.S.No.652 of 2001 was dismissed on 27.10.2003.

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Therefore, the present Execution Petition was filed for recovery of possession of the property. The judgment-debtor pleaded that after the dismissal of the suit in O.S.No.652 of 2001, there was a compromise with the decree holder and he agreed to pay Rs.15,000/-

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per month towards rent and accordingly he has been paying the same and thereafter the decree holder directed him to enhance the rent upto Rs.40,000/- and it was not done and he had handed over possession of two rooms from out of the Execution Petition schedule premises and, therefore, the Execution Petition is not maintainable and it is also barred by time.

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The learned II Additional Chief Judge, City Civil Court, Hyderabad held that the Execution Petition is not barred by time and hence ordered delivery and consequently the present revision is filed questioning the above said order.

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The point that arises for consideration is whether the Execution Petition is maintainable and not barred by limitation?

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POINT:

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A reading of the order of the lower Court shows that the learned II Additional Chief Judge, City Civil Court, Hyderabad has not properly taken into consideration the dates and erroneously and without application of mind has found that the Execution Petition is in time. In fact, he found that the present Execution Petition is filed on 30.01.2009 and evidently, the limitation starts from the date of dismissal of the appeal i.e. 29.01.1987. Evidently, the Execution Petition was filed 22 years after the dismissal of the appeal. However, it is to be noted that the judgment-debtor has filed O.S.No.652 of 2001 and it was dismissed on 27.10.2003. Therefore, even if the period of the injunction order is taken into consideration, it is not more than two years, which has to be excluded. If that is so, one fails to understand as to how the Execution Petition is within time. It is settled law that when the period of limitation starts it will not break. On this ground, the finding of the Executing Court that the E.P. is within time cannot be accepted.

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The learned counsel for the petitioner/decree holder contended that the present application shall be deemed to be an application for restoration of the E.P.No.3 of 1999, which was dismissed due to the filing of the suit subsequently. Now, this contention of the learned counsel cannot be considered. Reliance is placed on a judgment reported in the case of CHIDAMBARAM CHETTIAR v. PERIYASAMY CHETTIAR^[1] , wherein it was held that if the petition is dismissed for statistical purposes without any adjudication, it is not final and a fresh application must be deemed to be one for revival or continuance of the former application. In fact, this is not the plea before the lower Court. Reliance is also placed on a decision reported in the case of D.VENKATAPATHI NAIDU AND OTHERS v. V.SIDHAMMA NAIDU AND OTHERS^[2] .

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It is also further contended by the learned counsel for the respondents that the power of revision to be exercised by this Court is discretionary and merely because the order of the lower Court is irregular, the conduct of the judgment-debtor cannot be ignored. According to him, the judgment-debtor has filed O.S.No.652 of 2001 on the ground that there was an agreement of sale and some consideration was paid and ultimately the suit was dismissed. In fact all these are all facts which are now being raised at the time of revision. One more aspect which the lower Court has not taken into consideration is whether the part of the premises was already delivered to the decree holder under an agreement.

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Therefore, the order of the lower Court suffers from infirmity and the matter is remanded to the lower Court to consider as to whether the present application can be treated as a revival of the earlier E.P.No.3 of 1999 and to also consider whether the agreement pleaded by the judgment-debtor and the partial delivery of the suit property is true or not, an opportunity shall be given to the parties to adduce evidence.

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Accordingly, the order of the lower Court is set aside and the matter is remanded to the lower Court. The lower Court shall dispose of the matter within three months from the date of receipt of the copy of this order. Each party shall bear their own costs.

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________________________ N.R.L.NAGESWARA RAO, J

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Date: 01-04-2011 MR

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THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO

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CIVIL REVISION PETITION NO.2352 of 2010

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Date: 01-04-2011

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¶26

[1] AIR 1978 MADRAS 370

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[2] 1960 (1) ANDHRA WEEKLY REPORTER 85

New Ashoka Lodge v. D. Chandra Mohan

Case brief

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New Ashoka Lodge v. D. Chandra Mohan

Case brief

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